Public Information (Part One): Are Schools Keeping their Communities in the Dark?

13 September 2018

This is the first part of a two-part series exploring the kinds of information schools must and should make publicly available. Part One focuses on schools’ key legal obligations in this area, which are expanding due to increased focus on transparency. Part Two will focus on the key issues faced by schools when determining what to publish, and proposes some practical solutions.

Schools, like all institutions, are responsible for making certain details of their internal governance and policy framework available for consideration by the general public.

This is not only good practice, it is also a common legal obligation. For example, it is a requirement of the Privacy Act 1988 (Cth) for an applicable entity (which covers most non-government schools) to take reasonable steps to make available free of charge, in an appropriate form, a privacy policy (and a credit reporting policy if the entity is a credit provider). The object of this principle is to ensure that entities manage personal information in an open and transparent manner.

When it comes to government schools, a more obvious public access framework is already in place to guide their approach to publication. Government schools already publish large amounts of the relevant information they hold through annual reporting. Each jurisdiction also has legislation dedicated to public access to government information.

For example, access to government information in New South Wales is guided by the Government Information (Public Access) Act 2009 (NSW). The general principle of this legislation is that the public should have access to government information unless, on balance, it would be contrary to the public interest to provide that information. This covers annual reports, corporate strategies and statistics, but also applies to policies, general information, reports and data produced within the Department of Education which may in the past have been considered 'internal' information. Information in this context is very broad and includes anything compiled, recorded or stored in writing or electronically.

Non-government schools would not usually be captured by government information legislation, and consequently there is not a presumption of access to their information by the general public. The impact of this is that the scope of a non-government school’s publication obligations is far more uncertain. Publication obligations are also set to rise, with a greater focus on transparency and accountability in the wake of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission).

Child Protection Laws Drive Change

A key recommendation of the Royal Commission was that all Australian schools should have the same Child Safe Standards in place to protect children. In Recommendation 6.5, the Royal Commission identified 10 Child Safe Standards that are essential for a child safe institution (refer to our previous School Governance article).

Many of the Royal Commission’s Child Safe Standards contain specific requirements to make child safety information publicly available, including the following components:

  • Standard 1: Child safety is embedded in institutional leadership, governance and culture
    a. The institution publicly commits to child safety and leaders champion a child safe culture.

Implementing this component would require an organisation to explain in publicly available information how it is meeting its commitment to child safety, and that it welcomes community feedback.

  • Standard 3: Families and communities are informed and involved
    b. The institution engages in open, two-way communication with families and communities about its child safety approach and relevant information is accessible.

An organisation would need to ensure that institutional communications are publicly available, current, clear, timely, and delivered in multiple modes and formats as appropriate to a diverse stakeholder audience.

  • Standard 10: Policies and procedures document how the institution is child safe
    b. Policies and procedures are accessible and easy to understand.

The Royal Commission provided extensive guidance on meeting this component, stating that it would require child safe policies and procedures to be:

  • readily and publicly accessible
  • downloadable or available as a single Word or PDF document
  • ideally available in multiple modes for individuals with different levels of English literacy and proficiency, modes of communication and access to digital technologies
  • ideally available in child-friendly and developmentally appropriate formats.

Many jurisdictions already require schools to have publicly available information about their internal child protection framework. For example, schools in Western Australia and South Australia are required to publish a Child Safe Policy. The Victorian Child Safe Standards require schools in Victoria to publish details of the following documents:

  • Statement of Commitment to Child Safety
  • Child Safety Code of Conduct
  • Procedures for Responding to Child Abuse
  • Child safety strategies, roles and responsibilities.

As discussed in our previous School Governance article, while the process of including any nationally consistent child safe standards based on the Child Safe Standards in each state and territory’s regulatory regimes is likely to take some time, schools should start to prepare for this eventuality now. Because the Royal Commission’s Child Safe Standards set a higher benchmark for publishing information than any current jurisdictional regulatory regimes, schools need to proactively consider what they must, and should, make publicly available from their child safety framework.

School Registration Obligations

To be registered and maintain registration, a school is required to meet certain regulatory requirements. Registration authorities already require particular kinds of public-facing documentation, with variations by jurisdiction, school sector and school type.

For example, all schools have certain requirements with respect to annual reporting under the Australian Education Act 2012 (Cth) and Schools Assistance Act 2008 (Cth), and most schools are required to publish a complaints handling policy. NSW and Victoria have the most expectations with respect to making information publicly available; schools in these jurisdictions need to publish information about their student welfare policies, including a student discipline policy.

The Royal Commission recommended that the school registration process acts as a vehicle for implementing the Child Safe Standards in schools, indicating that these publication requirements may soon form part of a school’s requirements for attaining and maintaining registration.

Other Publication Requirements

There are various other legal and regulatory frameworks which may create obligations for schools to make information publicly available, including the areas referred to below.

Overseas Students

Schools that enrol overseas students must be registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). CRICOS-registered schools need to include the name and registration number of the school on certain publicly available documents for overseas students. There are also various publication requirements under the National Code of Practice for Providers of Education and Training to Overseas Students 2018, including policies for education agents and homestay arrangements.

Incorporation Requirements

Schools that are companies are covered by the Corporations Act 2001 (Cth), which requires companies to set out their name and ACN on all public documents – failure to do so will be a strict liability offence.

Schools that are public companies must provide a corporate governance statement in their annual report or on their public website disclosing the extent to which they have followed the ASX Corporate Governance Principles & Recommendations (refer to our previous School Governance article). They may also be required to meet continuous disclosure obligations under the Corporations Act.

Community Expectations

Schools may also be required to publicly disclose information to meet community expectations. For example, nearly all schools publish information on their assessment, reporting and homework expectations as current/prospective parents will often seek out this kind of information. Failure to meet community expectations may pose a reputational risk to a school.

Each school and school sector has a different level of engagement and methods of communication with its community, and each community will have different interests and focus areas. These interests and focuses will also change over time as stakeholders become more/less involved in the operation of the school and aware of different compliance obligations. Because of this, it is important for each individual school to continuously assess and consult with its community to consider what it should be publishing to meet community expectations.

Next Steps

With publication obligations set to increase as a result of regulatory developments, particularly with respect to child protection, schools should ensure they have robust compliance monitoring processes in place to verify that they have identified, and disclosed, all information which they are required and/or expected to make publicly available.

Kieran Seed

Kieran is a Legal Research Coordinator at CompliSpace. In his position, Kieran assists with drafting and review of governance, risk and compliance content programs and client-requested policies, while also writing regular articles for School Governance. Kieran’s key focus areas are student duty of care and school registration. Kieran studied at the University of Sydney, completing a Bachelor of Law and Bachelor of International and Global Studies majoring in Government and International Relations.